Monday, April 28, 2014Last Update: 3:36 PM PT

Lesbian Couple's Texas Divorce Put in Limbo

SAN ANTONIO, Texas (CN) - Though a county judge found that biased Texas law should not keep a lesbian couple from divorcing, an appeals court stayed the ruling. Identified as Kristi Lesh and Allison Flood Lesh by the San Antonio Express-News, the couple married in Washington, D.C., four years ago. Lesh became pregnant through artificial insemination and gave birth in February 2013, around the time their marriage certificate was filed in Bexar County. The women separated in July, however, and Flood Lesh filed for divorce this past February, seeking joint custody. Lesh answered that Flood Lesh is not the biological mother, nor an adoptive mother, despite their marriage. She asked a Bexar County judge to decline jurisdiction and dismiss the case. Judge Barbara Nellermoe denied Lesh's plea to the jurisdiction on April 22, allowing the divorce and custody claims to move forward. She ruled the women were legally married in D.C., that the state's same-sex marriage ban is unconstitutional because it denies due process and equal protection rights, and that both women are parents of the child. Texas Attorney General Greg Abbott requested a stay from the 4th District Court of Appeals in San Antonio on Wednesday, giving his office time to consider Nellermoe's findings. A three-judge panel with the court granted the stay Thursday, the Express-News reported. Abbott had cited "the risk of imminent harm from the trial court's unnecessarily broad order" in his motion. In a separate petition to the 4th Court, the attorney general deemed Nellermoe's order as a "clear legal error" and "an abuse of discretion because of its unnecessary overbreadth." "While the district court's authority extends only to the parties before it, the unnecessary and overly broad language used in the order creates the impression that the order was intended to have the statewide effect of 'striking down' Texas marriage law," the petition said. Flood Lesh meanwhile denied the "emergency" need for a stay in her brief, the Express-News reported. "Emergency stays involving a child should be granted when an emergency exists regarding the safety and welfare of the child," the brief stated. "No such emergency exists in this case." Flood Lesh's attorney, Judith Wemmert in San Antonio, wrote. Noting that Flood Lesh has not seen her child for eight months, Wemmert said her client had celebrated Nellermoe's ruling because it clears the way for a visitation hearing. Abbott's office has not returned a request for comment. In her five-page order, Nellermoe cited a recent ruling by U.S. District Judge Orlando Garcia in San Antonio that struck down Texas' 2005 voter-approved constitutional amendment that defines marriage as between a man and a woman. That case involved a Plano gay couple who wished to marry in Texas, and an Austin lesbian couple who wanted their Massachusetts marriage recognized in Texas. Garcia had stayed the execution of his order, however, pending the state's appeal to the 5th Circuit in New Orleans and possibly the U.S. Supreme Court alongside other decisions invalidating similar same-sex marriage bans in other states. Calling Garcia's opinion "well reasoned," Nellermoe said the ruling in De Leon v. Perry concluded that Texas can no longer discriminate against same-sex couples after the U.S. Supreme Court struck down a portion of the federal Defense of Marriage Act last year. "The court in De Leon further found that Texas' denial of recognition of the parties' out-of-state same-sex marriage violates equal protection and due process rights when Texas does afford full faith and credit to opposite-sex marriages celebrated in other states," Nellermoe wrote. "On this reasoning alone, petitioner would have standing to pursue her divorce in a Texas state court." Nellermoe said there is an "even more compelling" reason to find standing in this case since there is a child involved. If the parties returned to Washington, D.C., there would be a presumption under the law that Flood Lesh is the child's mother, according to the ruling. "A failure in Texas to afford the same presumption of parenthood to the wife of a child's birth mother as it does to a husband of the birth mother violates the Equal Protection Clause," Nellermoe said. "Petitioner joins a chorus of concern that a 'new class of children without mothers or fathers increasing the costs of corporate and governmental spending' arises from the rash of state constitutional and statutory discriminator restrictions against the children of same-sex couples." Texas is creating a "suspect classification of children" that are denied equal protection rights, Nellermoe concluded.